Full Judgment Text
19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.428/2010
th
% Date of decision: 26 September, 2011.
BSES YAMUNA POWER LTD ..... Appellant
Through : Mr. Anil Bhasin, Adv.
versus
SABIR ALI ..... Respondent
Through : Mr. Ashok Mahajan, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may NO
be allowed to see the Judgment?
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
JUDGMENT (ORAL)
1. The appellant has challenged the judgment of the
learned Trial Court on various grounds inter alia that the Civil
Courts had no jurisdiction to entertain and try the suit and the
remedy of the respondent was to approach the Special Court
under the Electricity Act, 2003. The appellant has referred to
and relied upon the Division Bench judgment of this Court in
the case of B.L. Kantroo v. BSES Rajdhani Power Ltd.,
154 (2008) DLT 56 (DB) .
RFA No.428/2010 Page 1 of 3
2. The learned counsel for the respondent submits that this
plea was not raised by the appellant before the learned Trial
Court. The learned counsel further submits that the plea of
inherent lack of jurisdiction raised by the appellant is
misconceived and the judgment in the case of B.L. Kantroo
(Supra) referred to by the appellant is clearly distinguishable.
3. The learned counsel for the appellant submits that new
plea relating to inherent lack of jurisdiction can be raised at
any stage. The learned counsel for the appellant refers to and
relies upon the judgment of the Apex Court in the case of
Chandrika Misir v. Bhaiyalal, AIR 1973 SC 2391 where it
was held that a new plea relating to inherent lack of
jurisdiction can be raised at any stage even if it was not raised
before the learned Trial Court.
4. In the facts and circumstances of this case, this case
needs to be remanded back to the learned Trial Court for a
finding on the plea of inherent lack of jurisdiction raised by the
appellant.
5. In view of the above, the case is remanded back to the
learned Trial Court to give a finding on the plea of the
appellant relating to inherent lack of jurisdiction of the Civil
Court after hearing both the parties. It is clarified that this
Court has not examined the merits of the case and, therefore,
RFA No.428/2010 Page 2 of 3
the parties shall be entitled to challenge the finding of the
learned Trial Court on the merits of the case after the decision
of the issue of jurisdiction. The appeal is disposed of on the
above terms.
6. Both the parties shall appear before the learned Trial
th
Court on 17 October, 2011 when the learned Trial Court shall
fix the date for hearing of both the parties on the issue of
inherent lack of jurisdiction of the Civil Court. The learned Trial
Court shall expedite the hearing in the matter.
7. LCR be returned back immediately through a special
messenger.
8. The appellant has deposited the decretal amount in
th
terms of the order dated 16 March, 2011. Let the said
amount be released to the respondent subject to furnishing the
security to the satisfaction of the Registrar General of this
Court.
9. Copy of this order be given ‘Dasti’ to learned counsels for
both the parties under signature of Court Master.
J.R. MIDHA, J
SEPTEMBER 26, 2011
mk
RFA No.428/2010 Page 3 of 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.428/2010
th
% Date of decision: 26 September, 2011.
BSES YAMUNA POWER LTD ..... Appellant
Through : Mr. Anil Bhasin, Adv.
versus
SABIR ALI ..... Respondent
Through : Mr. Ashok Mahajan, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may NO
be allowed to see the Judgment?
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
JUDGMENT (ORAL)
1. The appellant has challenged the judgment of the
learned Trial Court on various grounds inter alia that the Civil
Courts had no jurisdiction to entertain and try the suit and the
remedy of the respondent was to approach the Special Court
under the Electricity Act, 2003. The appellant has referred to
and relied upon the Division Bench judgment of this Court in
the case of B.L. Kantroo v. BSES Rajdhani Power Ltd.,
154 (2008) DLT 56 (DB) .
RFA No.428/2010 Page 1 of 3
2. The learned counsel for the respondent submits that this
plea was not raised by the appellant before the learned Trial
Court. The learned counsel further submits that the plea of
inherent lack of jurisdiction raised by the appellant is
misconceived and the judgment in the case of B.L. Kantroo
(Supra) referred to by the appellant is clearly distinguishable.
3. The learned counsel for the appellant submits that new
plea relating to inherent lack of jurisdiction can be raised at
any stage. The learned counsel for the appellant refers to and
relies upon the judgment of the Apex Court in the case of
Chandrika Misir v. Bhaiyalal, AIR 1973 SC 2391 where it
was held that a new plea relating to inherent lack of
jurisdiction can be raised at any stage even if it was not raised
before the learned Trial Court.
4. In the facts and circumstances of this case, this case
needs to be remanded back to the learned Trial Court for a
finding on the plea of inherent lack of jurisdiction raised by the
appellant.
5. In view of the above, the case is remanded back to the
learned Trial Court to give a finding on the plea of the
appellant relating to inherent lack of jurisdiction of the Civil
Court after hearing both the parties. It is clarified that this
Court has not examined the merits of the case and, therefore,
RFA No.428/2010 Page 2 of 3
the parties shall be entitled to challenge the finding of the
learned Trial Court on the merits of the case after the decision
of the issue of jurisdiction. The appeal is disposed of on the
above terms.
6. Both the parties shall appear before the learned Trial
th
Court on 17 October, 2011 when the learned Trial Court shall
fix the date for hearing of both the parties on the issue of
inherent lack of jurisdiction of the Civil Court. The learned Trial
Court shall expedite the hearing in the matter.
7. LCR be returned back immediately through a special
messenger.
8. The appellant has deposited the decretal amount in
th
terms of the order dated 16 March, 2011. Let the said
amount be released to the respondent subject to furnishing the
security to the satisfaction of the Registrar General of this
Court.
9. Copy of this order be given ‘Dasti’ to learned counsels for
both the parties under signature of Court Master.
J.R. MIDHA, J
SEPTEMBER 26, 2011
mk
RFA No.428/2010 Page 3 of 3